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Comment: Removing Violent Parents from the Home: A Test Case for the Public Health Approach

Few decisions are as determinative of a child's well-being and long-term success as the decision to remove a child from his or her own home following an allegation of abuse by a parent. Using the public health lens Professor Marsha Garrison develops elsewhere in this Issue, this Comment examines one of the most critical questions Child Protective Services agencies face thousands of times a day: whether to remove a child who is a possible victim of abuse or neglect from his or her home. This evidence-based approach shows that the choice to remove the child rather than the alleged offender is driven largely by two suppositions: misunderstandings about the legality of excluding alleged offenders from their home, compounded by the equally entrenched, but wrong-headed view that a non-abusing parent who fails to protect once will do so again. Ironically, many caseworkers and other decision makers falsely believe that only the child-victim is at risk from the alleged offender, and therefore remove only that child. Yet, in cases of intra-familial sexual abuse, perpetrators rarely stop with the first victim.

This Comment argues that CPS agencies legally can, and should, place the burden of homelessness on the alleged offender rather than compromising children's safety. It begins by dissecting the empirical factors driving the decision to remove children from their home, and illustrates that baseless suppositions of "maternal culpability" have led caseworkers reflexively to remove the victim, rather than pursuing the more direct and meaningful remedy of removing the threat to the child's safety. It also demonstrates that a shift in CPS' default remedy protects not only the victim, but his or her siblings who, left within the alleged offender's immediate grasp, would likely become the next victim. The Comment then examines how judges and legislators in nine states have laid the groundwork for excluding the alleged offender pending a full investigation. It considers and rejects several possible limitations of accepting exclusion of the alleged offender as the default remedy in cases of alleged child abuse. Using Professor Garrison's evidence-based approach, this Comment ultimately concludes that we have come a long way since Florence Rush asked in 1974, "[h]as anyone thought of the fantastic notion of getting rid of the [accused] father?"